BACKGROUND
1.1 In June 1990 the Attorneys General of NSW, Queensland and Victoria initiated a project with the aim of achieving uniformity of defamation laws in Australia. The Defamation Bill 1991 (NSW), introduced into Parliament on 14 November 1991, was the culmination of this work. Similar, though not identical, Bills were also introduced into the Parliaments of Queensland and Victoria.1 The Bills were never enacted.
1.2 The NSW Bill was referred to the Legislation Committee of the Legislative Assembly in November 1991. The Committee’s Report, published in October 1992, recommended that the Bill be referred to the Law Reform Commission for a comprehensive review and redrafting. On 4 November 1992 the then Attorney General, the Hon John P Hannaford MLC, requested that the Commission undertake a review of the law of defamation in NSW. The terms of reference are set out at page x.
THE COURSE OF THE REFERENCE
1.3 In August 1993 the Commission published Discussion Paper 32 Defamation (DP 32). A general theme of the Paper was to argue for a shift from the preoccupation with awards of damages in defamation actions and for reform of procedures and remedies. The issues raised and proposals put forward were designed to restore reputation more quickly and effectively, reduce costs, and reduce the threat to free speech caused by the prospect of “excessive” damages.
1.4 The Discussion Paper was widely circulated. The Commission received 32 written submissions. A full list is set out in Appendix 2.
1.5 The Commission also participated in a number of conferences and seminars held between 1993 and 1995.2 These provided opportunities for the Commission to present its proposals and to receive comment and criticism. The Commission also met with a number of distinguished academics from overseas including Professor Frederick Schauer, Frank Stanton Professor of the First Amendment, John F Kennedy School of Government, Harvard University and Professor John Soloski, School of Journalism and Mass Communications, University of Iowa.
1.6 In April 1995, the Commission met with a committee of the New South Wales Bar Association convened by Mr Henric Nicholas QC to discuss the proposals which the Commission was likely to make in this Report. The Commission is appreciative of the constructive comments which members of the Bar offered on our proposals and which helped both to indicate ways in which our proposed recommendations needed clarification and to refine them on a number of points.
DEVELOPMENTS DURING THE COURSE OF THE REFERENCE
1.7 A number of major developments in the law of defamation occurred in the course of this reference which have significantly influenced the recommendations which we make in this Report.
1.8 The first has been a number of cases involving large awards of damages, of which the most important was the Carson litigation.3 Mr Carson, a prominent Sydney solicitor, was awarded $600,000 by a jury for two defamatory articles published in the Sydney Morning Herald in 1987 and 1988. This was held to be excessive by the NSW Court of Appeal which ordered a retrial on the issue of quantum. Mr Carson appealed to the High Court. The High Court, by majority, dismissed the appeal and in doing so commented on the extent to which a jury could be presented with information relating to the ordinary level of general damages in personal injury cases to assist in making an appropriate award. At the new trial on the issue of quantum, Justice Levine held that the dicta in the High Court did not require a trial judge to instruct a jury on the general level of damages awards and that it was, indeed, improper for the judge to do so.4 The second jury awarded Mr Carson $1.3 million damages (an amount which was, of course, exclusive of interest and costs). The newspaper appealed but the case was settled before the appeal was heard. The concerns about large damages awards in defamation cases which were generated by this decision re-emerged in the late stages of the preparation of this Report when a jury in NSW awarded a plaintiff, an alderman of Fairfield Council, who was defamed by allegations published in the course of discussion of and concerning the plaintiff in his conduct as an alderman, $935,000 damages (an amount, once again, exclusive of interest and costs).5
1.9 The second was the decisions of the High Court in Theophanous6 and Stephens7 which considered the application of the constitutional implication of freedom of political discussion in the context of defamation law. The Court decided (by majority) that the implied constitutional guarantee does extend, in principle, to State defamation laws. In an action for damages, such laws are in conflict with the constitutional implication to the extent to which they fail, in cases of political discussion, to provide a defence to publications made without knowledge of their falsity, without recklessness and reasonably. The importance which these decisions give to freedom of political speech in the context of defamation law is reinforced by the earlier decision of the New South Wales Court of Appeal in Ballina Shire Council v Ringland,8 which denied a popularly elected local government authority the right to maintain an action in defamation in respect of published defamatory imputations which reflected on the performance of its functions. Although the reasoning in the case is not founded clearly on the notion of freedom of (political) discussion, the decision itself effectively promotes freedom of speech - an effect which the joint majority judgment in Theophanous9 recognises as flowing from a like holding of the House of Lords in Derbyshire County Council v Times Newspapers Ltd.10 The Commission has carefully considered these decisions in developing its recommendations.
1.10 The third major development was the passage of the Defamation (Amendment) Act 1994 (NSW). On 22 November 1994 the then Attorney-General, the Hon John P Hannaford MLC, introduced the Defamation (Amendment) Bill 1994 into the Parliament. The Bill proposed three major changes to the defamation laws of New South Wales:
- the defence of justification should be amended so that truth alone was a defence to a defamatory imputation (rather than that the imputation was substantially true and related to a matter of public interest);11
- the trial judge and not the jury should determine whether any defence was established and the amount of damages;
- in the assessment of damages the trial judge should ensure that any damages awarded have an appropriate relationship to the injury suffered and take account of the general range of damages for non-economic loss in personal injury awards in New South Wales.
1.11 The Bill was amended during its passage through the Parliament, and the proposal for truth alone to constitute the defence of justification did not survive.12 The remaining proposals passed through the Parliament on 5 December 1994 and came into effect on 1 January 1995.
1.12 The Commission has analysed the provisions of the new Act which agree with some of the tentative views put forward in DP 32. Overall, the Commission supports the provisions of the Act.
COMMENT ON THE TERMS OF REFERENCE
1.13 The Commission’s terms of reference are very broad. The Commission is required to report on the law of defamation and to focus on seven specific matters.13 Comment is necessary on five matters to which the Commission is directed to pay particular attention in its terms of reference: the desirability of uniformity of defamation laws in Australia; the weight to be placed on the Defamation Bill; the need to have regard to empirical evidence; the necessity for “shield laws” to protect journalists’ sources; and the need for the provision of a separate tort of invasion of privacy.
Uniformity
1.14 The Commission’s terms of reference require it “to have particular regard to the proposals of the Standing Committee of Attorneys General for uniformity of defamation laws in Australia”. We recognise that a major force behind the three eastern States’ Defamation Bills in 1990-1991 was the desire to attain uniformity in defamation laws, initially between New South Wales, Queensland and Victoria.14 We also note the desire for uniformity expressed in recent statements by the Standing Committee of Attorneys General15 and in the expectation expressed in the Justice Statement launched by the Prime Minister on 18 May 1995 that this Report will “form the basis for a renewed attempt to gain agreement on uniform defamation laws”.16
1.15 The Commission has interpreted its terms of reference as requiring it to consider, as an important factor in formulating its recommendations, their potential impact on uniformity of laws within Australia. We have been assisted in doing so by submissions containing a national perspective, as well as by submissions received from bodies outside New South Wales. We have also studied the draft Defamation Bill prepared by the Community Law Reform Committee of the Australian Capital Territory in November 1994.17
1.16 The Commission recognises, however, that, in the final analysis, our brief requires us to achieve the best possible defamation law for New South Wales - a law which reflects both current community expectations and recent legal developments (both in legislation and in the courts). It follows that where sustained research and analysis have led us inexorably to the conclusion that the best law can only be achieved by amendment of the current law, we have recommended change even where its implementation will promote disharmony between the law of New South Wales and that of the other Australian jurisdictions. A major recommendation in this Report is that falsity should form an ingredient of the tort of defamation.18 The implementation of this recommendation, which effects a radical change in the law, will mean that the cause of action in defamation in New South Wales will differ from that in all other Australian jurisdictions. In our view, however, it is only by making this change that the law of defamation can be made to fulfil its essential function of vindicating plaintiffs’ reputations in a way which not only addresses many intractable and long-standing problems of the law of defamation but also promotes the flow of accurate information.19
1.17 In considering the effect of our proposals on uniformity of defamation laws in Australia, the Commission has been careful to keep in mind differences in practice and procedure between the several Australian jurisdictions. In our view, in the context of a highly technical branch of the law such as the law of defamation, some of these differences constitute real impediments to the achievement of uniformity which cannot be simply dismissed as “mere” differences in practice and procedure. This observation is particularly important in respect of two matters which we consider in this Report and where we prefer the current law of New South Wales to that which obtains in other jurisdictions: the distribution of functions between judge and jury; and the fact that, in New South Wales, each imputation is a separate cause of action.
1.18 Many of the recommendations which we make in this report are premised on, or influenced by, what the Commission regards as the proper distribution of functions between judge and jury in defamation matters.20 For example, we do not believe that the question of whether or not there should be caps on awards of damages can be completely divorced from the question of who determines those damages: if it is to be a jury, the argument for a cap on awards is stronger than if it is to be a judge, for a judge can be assumed to have a knowledge of the prevailing general level of damages awards which a jury does not possess.21 The role of the jury in defamation actions in New South Wales is now restricted to deciding: (i) whether the defendant published the matter complained of;22 (ii) whether the matter complained of carries the imputation pleaded; and (iii) whether the imputation is defamatory.23 Other Australian jurisdictions assign a wider or narrower role to the jury.24
1.19 The defamatory meaning of any published matter is found in the imputations which it conveys.25 In New South Wales a cause of action in defamation is founded on the imputations, each pleaded imputation giving rise to a separate cause of action.26 The plaintiff fails where the imputation is not conveyed by the matter complained of or where the imputation is found not to be defamatory. By contrast, the common law position, which obtains in all other Australian jurisdictions, is that the cause of action is founded on the publication of the defamatory matter, so that, in principle, it is always open to the court to find that the matter conveys a defamatory meaning or imputation different from that pleaded by the plaintiff.27 Practically, this is a substantial difference from the New South Wales position, which, by placing a premium on careful and accurate pleading,28 achieves a precision in the formulation of the plaintiff’s case which is not always attainable in other jurisdictions. This precision facilitates the recommendations which we make in this Report concerning the incidence of the burden of proof of falsity.29
The Defamation Bill
1.20 The Commission has had particular regard to the Discussion Paper30 and Report31 of the Legislation Committee on the Defamation Bill 1992. We have also considered the expectation, implicit in the requirement in our terms of reference that we “should provide drafting instructions for amendment of the Bill”, that our recommendations should take the form of amendments to the 1992 Bill. As we have pointed out in para 1.16, we regard our task as being to recommend the best possible defamation law for New South Wales. In our view, that law is best achieved by amendment of the Defamation Act 1974 (NSW). The 1974 Act originated in a report of this Commission32 which was undertaken after the attempted codification of the law of defamation in the Defamation Act 1958 (NSW) had proved unworkable.33 The 1974 Act has been tested in practice over a number of years, and, as we pointed out in our Discussion Paper on Defamation,34 the eastern States’ Defamation Bills were largely based on that Act. Our recommendations, therefore, take the form of amendments to the 1974 Act. Proposed amendments to this Act, and of other relevant legislation, have been drafted by Parliamentary Counsel and appear as Appendix 1 to this Report.
Empirical research
1.21 The Commission’s terms of reference require it to “take into consideration such empirical data relating to defamation matter as may be available”. The Commission has examined the studies undertaken in NSW by Tania Sourdin35 and by Brendan Edgeworth and Michael Newcity,36 as well as a number of studies undertaken overseas. The Commission investigated the possibility of conducting its own empirical study which would update and expand the information from the earlier studies. However, after examining a sample of defamation files at the Supreme Court and taking into account the limited data available from those files and elsewhere, the Commission concluded that more recent data would add little to the findings of the earlier studies.
Privacy
1.22 The existing law of defamation provides some protection to privacy interests.37 It does so because our law has no separate tort of invasion of privacy. The Commission has come to the view that the desirability of the introduction of a tort of invasion of privacy should not be resolved in the context of a review of the law of defamation. In our view, this question should form the subject of a separate inquiry for it is, in itself, a major project involving extensive research and consultation. To undertake such a project as part of a review of the law of defamation would have resulted in the significant delay of the publication of this Report. On 18 November 1994, the Commission wrote to the then Attorney General advising him that it did not propose to deal with the question of whether or not there should be a separate tort of invasion of privacy in the context of this review. Privacy issues are, therefore, only dealt with peripherally in this Report.
1.23 The Commission has, however, considered whether it is appropriate to continue the existing level of privacy protection in the law of defamation until such time as privacy laws are developed,38 especially in view of the fact that the Defamation (Amendment) Bill 1994 (NSW), as originally introduced into Parliament, would have removed some of the privacy protection currently provided by the law of defamation.39 It would have done so by amending the defence of justification to make truth alone a defence to a defamatory imputation (in place of the existing defence of justification which provides that it is a defence to a defamatory imputation that the imputation is a matter of substantial truth and that it either relates to a matter of public interest or is published under qualified privilege).40
1.24 The Commission believes that until such time as there is a thorough review of the desirability of introducing a tort of invasion of privacy, the law of defamation should continue to provide limited protection for persons’ privacy even if such protection ought not, in itself, to be a goal of the law of defamation. In particular, the Commission is concerned about the potentially serious threat to individuals’ privacy which would result from amendment of the current defence of justification. Although, in the light of our recommendation that falsity should form an essential ingredient of the cause of action in defamation, we recommend in this Report that the defence of justification should be abolished, we also recommend that, in an action for damages, a plaintiff can, instead of proving the falsity of the imputation, prove that the imputation does not relate to a matter of public interest. 41 The effect of this latter recommendation will be to retain existing levels of privacy protection in the law of defamation.
1.25 Further, the Commission points out that the amendment of the defence of justification to make truth alone a defence to publication would not, in any event, significantly promote uniformity of defamation laws in Australia. While the adoption of truth alone as a defence would bring the law of New South Wales into line with the laws of the Northern Territory, South Australia, Victoria and Western Australia, it would also widen the gap that now exists between, on the one hand, the law of New South Wales and, on the other hand, the laws of the Australian Capital Territory, Queensland and Tasmania (where justification is a matter of truth and public benefit).
Shield laws
1.26 The Commission’s terms of reference require that consideration be given to “the need for the provision of ‘shield laws’ to protect journalists’ sources”. Like privacy, this is not a discrete issue for the law of defamation and any detailed consideration of it in this context would have significantly delayed the completion of this Report. The extent to which journalists should be able to refuse to reveal sources in court raises the more general issue of the extent to which witnesses should be allowed to refuse to give evidence on particular matters by reason of “professional privilege”. The Commission notes that the recent Commonwealth and New South Wales Evidence Acts 1995 reaffirm the general principle that a person who is competent to give evidence about a fact is compellable to give that evidence42 and do not greatly extend the traditional categories in which persons have a privilege which takes them outside the general rule.43 The Commission is of the view that any detailed consideration of “shield laws” should take place in the context of an examination of the desirability of the expansion of professional privilege, as is demonstrated in a recent Report of the Law Reform Commission of Western Australia,44 whose recommendations, in respect of journalists’ confidential sources, have largely been supported by the Senate Standing Committee on Legal and Constitutional Affairs.45 The Commission has studied the work of these bodies and agrees with their conclusion that the right balance between the public interest in the protection of information received by journalists from confidential sources and the public interest in the administration of justice is found in the provision of a statutory discretion which may excuse journalists from revealing their sources in the circumstances of the particular case.
FOOTNOTES
1. For more detail on the background to the reference, see New South Wales Law Reform Commission, Defamation (DP 32, 1993) at 1-5.
2. See Appendix 3.
3. John Fairfax & Sons v Carson (1991) 24 NSWLR 259; Carson v John Fairfax & Sons (1993) 178 CLR 44. See also the Ettingshausen litigation which is mentioned in paras 2.34, 3.25 and 3.26.
4. Carson v John Fairfax & Sons Ltd (1994) 34 NSWLR 72.
5. Hartley v Nationwide News Pty Ltd (1995) 31 Gazette of Law and Journalism 9. An appeal is pending in this case (NSW, CA40316/95).
6. Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104.
7. Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211.
8. (1994) 33 NSWLR 680. An application for special leave to appeal to the High Court, filed on 14 June 1994, was withdrawn on 1 July 1994.
9. Theophanous at 129-130 per Mason CJ, Toohey and Gaudron JJ.
10. [1993] AC 534. For a discussion of the Ringland case, see L W Maher, “Defamation, Free Speech and Local Government Politics” (1995) 3 Torts Law Journal 116.
11. Compare cl 20(2) of the Defamation Bill 1992 (NSW) which provided protection for the plaintiff’s “private affairs”: see Attorneys General of NSW, Queensland and Victoria, Discussion Paper on Reform of Defamation Law (August 1990) paras 7.1-7.13; Reform of Defamation Laws Discussion Paper (No 2) (January 1991) paras 4.1-4.8. But see Parliament of New South Wales, Legislative Assembly, Report of the Legislation Committee on the Defamation Bill, 1992 (October, 1992) Ch 4.
12. Ms Clover Moore, an independent Member of the Legislative Assembly, successfully moved an amendment to delete this proposal in the Bill.
13. See Terms of Reference at x.
14. See Parliament of New South Wales, Legislative Assembly, Report of the Legislation Committee on the Defamation Bill, 1992 at 3.
15. The Australian, 17 October 1994, at 5; Australia, Parliamentary Debates (Hansard) House of Representatives, 16 November 1994, at 3471 (Hon Michael H Lavarch).
16. Australia, Attorney-General’s Department, Justice Statement (May 1995) at 128.
17. On a number of occasions in 1993 and 1994, pursuant to suggestions made by the then Attorneys-General of New South Wales and the Australian Capital Territory, representatives of the Commission met representatives of the Community Law Reform Committee of the Australian Capital Territory to discuss our separate references on defamation. It was resolved that the Commissions would keep one another informed on the progress of their respective references.
18. See Recommendation 5 in Chapter 4.
19. See paras 2.5-2.26.
20. See Chapter 3.
21. See paras 7.4-7.10.
22. Defamation Act 1974 (NSW) s 7A(4).
23. Defamation Act 1974 (NSW) s 7A(3).
24. See para 3.5.
25. On the meaning of “imputation” see para 4.2.
26. Defamation Act 1974 (NSW) s 9(2).
27. See Slim v Daily Telegraph Ltd [1968] 2 QB 157; Lucas Box v News Group Newspapers Ltd [1986] 1 WLR 147.
28. The Supreme Court Rules 1970 (NSW) Pt 67 contain detailed provisions on pleading in defamation cases.
29. See para 4.19.
30. Parliament of New South Wales, Legislation Committee on the Defamation Bill, 1991 (Discussion Paper, May 1992).
31. Parliament of New South Wales, Legislative Assembly, Report of the Legislation Committee on the Defamation Bill, 1992 (October, 1992).
32. NSW Law Reform Commission, Report of the Law Reform Commission on Defamation (LRC 11, 1971).
33. The 1958 Act attempted to transpose Sir Samuel Griffith’s Queensland Code into the law of New South Wales. The experiment highlights the point that codification should only be attempted in the law of defamation when absolutely necessary. Although the Code survives in Queensland, not a great deal of defamation litigation takes place in that State (especially in comparison with New South Wales).
34. DP 32 at para 1.21.
35. T Sourdin, “A Study of Defamation Proceedings Commenced in the New South Wales Supreme Court for the period 1.1.87 to 13.12.88” (unpublished paper, University of New South Wales, 1990).
36. B Edgeworth and M Newcity, “Politicians, Defamation Law and the ‘Public Figure’ Defence” (1992) 10 Law in Context 39.
37. See para 2.33.
38. See paras 2.34-2.36.
39. See para 1.10.
40. See Defamation Act 1974 (NSW) s 15(2).
41. See paras 4.16-4.17.
42. Evidence Act 1995 (Cth) s 12(b); Evidence Act 1995 (NSW) s 12(b).
43. Evidence Act 1995 (Cth) Pt 3.10; Evidence Act 1995 (NSW) Pt 3.10.
44. Law Reform Commission of Western Australia, Report on Professional Privilege for Confidential Communications (Project 90, 1993), especially Chapter 4.
45. Australia, Senate Standing Committee on Legal and Constitutional Affairs, First Report of the Inquiry Into the Rights and Obligations of the Media: Off the Record (Shield Laws for Journalists’ Confidential Sources) (October 1994), especially Chapter 7.
